PHILIPSBURG–The Ombudsman recently concluded a systemic Investigation regarding the Dismissal Advisory Committee (DAC), initiated as result of a complaint filed by a lawyer on behalf of electricity and water GEBE.
The investigation focused on the DAC’s functioning and the decision-making procedure followed by the Ministry of Public Health, Social Development and Labour (VSA) Secretary-General (SG) on petitions filed for dismissal.
Considering a possible increase of petitions for dismissal to be filed by employers as a result of the effects of the hurricanes in September 2017 on businesses on St. Maarten, the importance of the DAC in the SG’s decision-making process, the functioning of these entities had the Ombudsman’s full attention.
The Ombudsman concluded in the preliminary findings report (PFR) that there are in place sufficient and adequate rules and regulations for the operation of the DAC. However, the formal implementation by publication of the Rules of Order and policy (“Richtlijnen”) governing the advice procedure has not yet been executed, nor are they properly followed or visible in the DAC’s advice.
The report found the SG’s decision-making process regarding a request to dismiss an employee “not to be transparent, efficient and adequate to provide a properly motivated decision on a petition submitted by an employer, more so when taken independently.” A proper link between the DAC’s advice and motivation of the decision taken by the SG “remains obscure.”
Further, proper application of the appendices listed in the National Decree regarding procedures for termination of employment, is required, said the Ombudsman.
Based on the report, Ombudsman has recommended that government install the new DAC members as soon as possible by decree as stipulated in article 3 National Ordinance Termination of Labour Agreements and provide the Ombudsman with a copy of said decree, and possibly revise appendices V, VI, VII VIII with a designated area to indicate the criteria for dismissal and thorough and sound reasoning for the conclusion, to offer a transparent and motivated advice/decision.
The recommendation called for the inclusion of practical execution of the laws, regulation and policy in the training programme to be held for the DAC members and the staff of the Labour Department.
In addition to a rotating system for the DAC members, government is required to establish a policy that prevents current and past employees of an employer requesting to terminate a labour agreement from participating in the pertinent deliberations.
The Labour Minister has duly followed up and informed the Ombudsman by letter dated September 18 that the Ministry agrees with the Ombudsman’s conclusions and will follow the recommendations presented. Some of the recommendations have already been complied with, such as the installation of a new DAC.
The final report was submitted to government on September 24, as well as to Parliament considering the nature and importance of the investigation for the public.
The Ombudsman has requested a status report, within six months from the date of the report, on the results of the measures taken by the VSA Ministry to enhance compliance with the law, propriety and good governance in dealing with petitions for dismissal of employees.
The final report is available for download via the website www.ombudsmansxm.com under the “Articles and Presentations” tab.